IN COURT OF APPEALS
Brian Auringer, petitioner,
Toussaint, Chief Judge
Nicollet County District Court
File No. K0-01-428
John M. Stuart, State Public
Defender, Benjamin J. Butler, Assistant Public Defender,
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Michael K. Riley, Nicollet County
Attorney, Michelle M. Zehnder Fischer,
Considered and decided by Klaphake, Presiding Judge; Toussaint, Chief Judge; and Peterson, Judge.
S Y L L A B U S
The definition of “sexual penetration” in Minn. Stat. § 609.341, subd. 12(2) (2000), includes “any intrusion however slight into the genital or anal openings” of another even when accomplished through the complainant’s clothing.
O P I N I O N
TOUSSAINT, Chief Judge
In this appeal from an order denying a postconviction petition challenging appellant’s convictions for first- and second-degree criminal sexual conduct, appellant argues that the statutory definition of sexual penetration does not include digital penetration of the victim’s vagina through her clothing. Appellant also argues that the trial court committed plain error at trial in admitting an audiotape of appellant’s statement to police, during which the officer allegedly vouched for the credibility of the victim’s report. Because we conclude the term “sexual penetration” unambiguously includes penetration through clothing and the trial court did not err in admitting the audiotape, we affirm.
Thirty-eight-year-old appellant Brian Jay Auringer provided after-school care for Tammy and Paul Burandt’s six-year-old twins and Tammy’s 12-year-old daughter from a previous marriage, P.S. On May 16, 2001, Mrs. Burandt took P.S. to a clinic for a camp physical exam. Nurse Practitioner Nancy McLoone conducted the exam. P.S. told McLoone that she was having trouble sleeping because she “thinks a lot about things and worries,” and Auringer was hurting her. McLoone also noted that P.S. seemed sad and was tearful when talking about Auringer and opined that P.S. exhibited common characteristics of an abused child.
Mrs. Burandt was present during the exam. When P.S. said Auringer had hurt her, Mrs. Burandt asked P.S. if she was telling the truth this time because P.S. had previously made similar allegations against her father and stepfather. P.S. tearfully told her mother it was true. P.S. told McLoone that Auringer had hurt her the previous day, May 15, and many other times. She also explained that she had not told anyone because Auringer said he would hang her if she did. McLoone reported the alleged abuse to social services.
Detective Curt Tuma was in charge of the investigation. He referred P.S. for a “Corner House” interview with Brenda Dittrich of Nicollet County Child Protection. Dittrich’s May 18 interview with P.S. was videotaped and played to the jury. Using dolls, P.S. described Auringer inserting his fingers into her vagina. She also described incidents of him touching her privates on the couch, on the stairs, in the bathroom, and the bedroom, and him placing her hand on his penis in the bedroom.
Tuma asked Auringer to talk to him about P.S.’s allegations. Auringer agreed to appear for an interview on
May 24. The interview was audiotaped and
played to the jury without objection. Auringer
explained to the detective that the Burandts had told him to be careful because
P.S. had previously made allegations against Mr. Burandt. Auringer told the detective he thought P.S.
was “probably pulling the same stunt like she did . . . to Paul.” The detective clarified that P.S. had not
claimed that Auringer had “raped” her, but she had claimed that he had “done
some things to her.” The detective said
he wanted Auringer to tell him the truth because P.S. “tells a pretty
convincing story and I wanna be able to speak to your truthfulness at our
At trial, P.S. testified that Auringer had threatened to shoot or hang her if she reported the conduct. She also testified to Auringer touching her breasts over her clothing in the bathroom; unzipping his pants and placing her hand on his penis in a bedroom; touching and inserting his fingers into her vagina through her clothing in the bedroom; touching and inserting his fingers into her vagina while they were on the couch; and touching and rubbing her vagina and buttocks while she was on the stairs.
jury found Auringer guilty on two counts of first-degree and two counts of
second-degree criminal sexual conduct.
He was convicted of and sentenced for two counts of first-degree
criminal sexual conduct under
I. Does the first-degree criminal sexual conduct offense include digital penetration of the vagina through the victim’s clothing?
II. Did the audiotape of the investigating officer’s conversation with Auringer include impermissible vouching testimony, and, if so, did its admission constitute reversible plain error?
III. Should Auringer’s pro se brief be disregarded?
Auringer argues that “inserting his finger into P.S. through her clothing” does not fall within the statutory definition of “sexual penetration” for first-degree criminal sexual conduct.
standard of review for statutory interpretation is de novo. State v. Iverson, 664 N.W.2d 346, 350
legal question raised by Auringer appears to be one of first impression in the
Auringer was convicted under Minn. Stat. § 609.342, subd. 1(a) (2000), which states that it is a crime for a person to “engage in sexual penetration with another person . . . if . . . the complainant is under 13 years of age and the actor is more than 36 months older than the complainant.” “Sexual penetration” is, in relevant part, “any intrusion however slight” into the genitals of the complainant’s body. Minn. Stat. § 609.341, subd. 12(2) (2000).
admission on appeal that he “inserted” his finger into P.S.’s vagina would
appear to unambiguously fall within the definition of sexual penetration. Auringer attempts to create an ambiguity,
however, by contrasting the definition of “sexual penetration” with the
definition of “sexual contact,” which is the basis for other criminal sexual
conduct offenses. See
Auringer argues that the legislature did not intend to include penetration through clothing as “penetration” because it did not expressly refer to clothing in the definition of sexual penetration. In contrast, Auringer points to the definition of sexual contact, which may occur either by touching bare skin or by touching through clothing. See Minn. Stat. § 609.341, subd. 11(a)-(c) (2000) (setting out several types of “sexual contact”).
review of the criminal sexual conduct statutes demonstrates the legislature’s
ability to precisely describe prohibited acts and prescribe appropriate
penalties for each. Not only does the legislature
provide detailed definitions of the applicable terms, including penetration and
contact, Minn. Stat. § 609.341 (2000), but it describes five degrees of
prohibited conduct specifically using those terms, Minn. Stat. §§
609.342-.3451. The legislature also
considered a number of factors in attaching a penalty to each criminal act: the
age and mental competence of the complainant and the actor, consent, coercion,
the specific conduct, and the relationship between complainant and actor. See id. Given the legislature’s attention to the
details of these offenses, there is no merit in Auringer’s argument that the
legislature actually intended to include other distinguishing elements in a
definition whose meaning otherwise is plain.
See generally State v. Koperski,
611 N.W.2d 569, 573 (
there is no rule of statutory construction that requires symmetry between the
statutory definitions of penetration and contact. The definitions of each are set out
distinctly and with precision. And the
operative word in the definition of penetration is “intrusion.”
If the presence of clothing were a relevant factor justifying distinct treatment in cases of penetration, there is no question that the legislature would have so stated. Accordingly, applying the plain meaning of the statutory definitions used in the first-degree criminal sexual conduct statute, we conclude that Auringer’s insertion of his fingers into P.S.’s vagina through her clothing constituted sexual penetration.
Auringer argues that his rights to due process and a fair trial were denied when the jury heard an audiotape in which a well-credentialed sex crime investigator allegedly commented on the victim’s credibility.
counsel did not attempt to suppress or object to admission of the
audiotape. He also did not request
redaction of any part of the tape or a cautionary jury instruction. Failure to object to the admission of
evidence generally constitutes waiver of the right to appeal on that
basis. State v. Bauer, 598 N.W.2d
352, 363 (
is well settled that one witness may not “vouch for or against the credibility
of another witness.” State v.
Here, the context of the audiotaped interview was made clear to the jury. Auringer appeared voluntarily, and the detective’s very clear objective was to elicit Auringer’s version of the facts so that the county attorney would have facts from both sides before deciding whether to charge Auringer. In the forty-page transcript, three times Tuma commented that P.S. gave a “convincing story.” Each time, the context was the detective’s attempt to persuade Auringer to be forthcoming and provide facts to rebut P.S.’s allegations. Cf. Ferguson, 581 N.W.2d at 835-36 (stating that because defendant was at police station, jury could have understood officer’s statements about credibility of defendant and other witnesses as mere attempt to get defendant to confess). Tuma never said that he was convinced P.S. had given a truthful statement; he referred to P.S. as providing a “story,” that, only absent Auringer’s side of it, was “convincing.” Tuma also provided Auringer with multiple opportunities to show that P.S. was motivated or prone to lie. Coupled with other testimony that P.S. had previously lied regarding abuse by her father and stepfather, Tuma’s comments did not prejudice Auringer or affect the outcome of his trial. Because the comments were not error, and, even if they were, they were not reversible error, Auringer is not entitled to a new trial.
Auringer has submitted a pro se brief in which he denies the claims made against him and states his version of the facts. Because his brief is, in effect, an attempt to improperly supplement the record with additional facts, this court may disregard it as a violation of Minn. R. Civ. App. P. 110.01, which limits the record on appeal to the evidence presented to the district court.
D E C I S I O N
Because the definition of sexual penetration unambiguously encompasses penetration through clothing and because the trial court did not err in admitting the audiotaped interview, the postconviction court properly denied Auringer’s requested relief.